Gay Marriage

Until very recently the issue of gay marriage had been limited to debate in state legislatures and rulings in state courts, which had decided them on state constitutional grounds. This meant that the Supreme Court did not have to review the decisions, and could thus avoid ruling on what is certainly the most controversial social issue before the nation since the abortion decision in Roe v. Wade in 1973. When the District of Columbia adopted a law permitting same-sex marriage, Chief Justice John Roberts declined to step in and stop the law from going into effect.

The Court may not be able to duck the issue much longer. In the past year both a state judge and a federal judge have ruled that state constitutional bans against same-sex marriage violate the federal constitution.

In Dallas, Texas District Judge Tena Callahan held that the Texas constitutional provision, approved in a 2005 voter referendum by a 75-25 margin, defining marriage only as "the union of one man and one woman" violates the Equal Protection Clause of the Fourteenth Amendment. The case involved a request for a divorce by a gay couple who had been married legally in another state, and Judge Callahan said that her ruling was very narrow and applied primarily to whether a Texas court could hear such a case. Texas Attorney General Greg Abbott said he would appeal the decision, but it is very possible that it could be determined in a Texas appellate court. That is not the case in a ruling by federal district judge Vaughn R. Walker, who struck down California's Proposition 8 as a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Prop 8 was a 2008 ballot initiative that amended the California constitution to prohibit the recognition of same-sex marriages, and it passed by a margin of 52-48. Evidence indicates that this margin may not accurately reflect popular sentiment in the state, where a majority indicated approval of Judge Walker's rulings.

The trial drew a lot of attention not just because of the subject, but because of the lawyers involved. Former Solicitor General Ted Olson, a Republican, and Davis Boies, a Democrat, led the challenge, and the two had been opposing counsel in the 2000 case of Bush v. Gore. Defending Prop 8 was Charles Cooper, considered one of the best civil litigators in Washington. But as Walker pointed out, Cooper had been unable to build a record to prove that invalidating Prop 8 would cause harm, or that same sex marriage created any danger to civil society. He put two witnesses on the stand, and they often contradicted themselves under cross-examination. Olson and Boies, on the other hand, built a strong factual case as to why Prop 8 denied equal protection, and why banning gay marriage did not rise to the level of an important government consideration.

The case will now go to the Ninth Circuit, traditionally one of the most liberal in the country, and observers believe Walker's decision will be upheld there, primarily because the record so strongly supports it. Because this is a case that began in federal court, and implicates constitutional interpretation, it is hard to see it not being appealed to the Supreme Court. If in fact the Ninth Circuit upholds the ruling, the only way the high court could avoid hearing the issue is to let the lower court ruling stand. Whether the conservatives on the bench are willing to let that happen will not be known for at least two years.